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Shield v Shield [2013] EWHC 3525 (Fam)

Wife’s application in financial remedy proceedings to remove a litigation friend who had been appointed by the court to act for a husband who lacked capacity

A wife applied within ancillary relief proceedings seeking the removal of a litigation friend acting on the part of her husband who lacked capacity. The parties had been married for 43 years when the wife petitioned for divorce. The husband had recently been both physically and psychiatrically unwell. At an early stage of the ancillary relief proceedings the court considered the question of the husband's capacity and appointed a litigation friend to act on his behalf. At this hearing which took place on 5 February 2013 the wife proposed that the Official Solicitor act as the litigation friend.  A solicitor who had previously acted on behalf of the family, including the wife, put himself forward to act as the litigation friend and was appointed by the court. The wife did not appeal that decision.

The application was thereafter listed for a four day hearing on 25 November 2013 to determine a preliminary issue. The preliminary issue to be determined was whether the husband and wife's shareholdings in a family business valued at approximately £50 million were held on trust for the son of the parties. The son had intervened in the application and a further cause of concern to the wife was the fact that he was represented by the same firm of solicitors in which the solicitor acting as litigation friend for the husband was a partner.

The wife made an application on 23 August 2013 in which she raised an objection to the continued appointment of the solicitor as the husband's litigation friend. The essence of her case was that the solicitor was conflicted and was far too close to some of the events which fell for scrutiny to have the required objectivity and detachment to act as litigation friend for the husband. 

The application was listed before Holman J on 1 November 2013 with a time estimate of four hours. Holman J declined to deal with the issue. Holman J identified three reasons for this decision. He stated the time estimate was insufficient to determine the issue properly and secondly the issue has been raised far too late after the essential decision and order of 5 February 2013. Finally, Holman J observed that there was insufficient time before the preliminary issue hearing for a new litigation friend to be identified and to be able properly to prepare and take on the case and this would almost certainly be the case if the Official Solicitor was appointed as litigation friend.

Holman J emphasised that he was not dismissing the application but was unable to make any order upon it. Holman J also expressed his significant concerns as to whether the husband continued to lack capacity and directed an updating expert from the psychiatrist who had previously been instructed whose last reported was dated 2 August 2013 and described as "equivocal". Finally, Holman J noted with some despair that the costs of this case had already reached £700,000 and this was before the preliminary issue had even been determined. Holman J acknowledged the benefits of listing a FDR in this type of family dispute even prior to the determination of the preliminary issue but accepted there was now insufficient time for this to take place in light of the imminence of the preliminary issue hearing.

Alison Easton barrister, Coram Chambers

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Neutral Citation Number: [2013] EWHC 3525 (Fam)

Royal Courts of Justice
Friday, 1st November 2013



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B E T W E E N :


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(through his Litigation Friend, Stephen Woolfe)

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Transcribed by BEVERLEY F. NUNNERY & CO
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MR. P. CAYFORD QC  and  MISS L. CADE-DAVIES  (instructed by Payne Hicks Beach)  appeared on behalf of the Applicant.
  and  MR. T. DUMONT  (instructed by Shakespeares Legal LLP) appeared on behalf of the Respondent.
MR. C. WAGSTAFFE QC  and  MISS A. SHERIDAN  (instructed by Shakespeares Legal LLP)  appeared on behalf of the Intervenor.
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1. I have been faced today with a situation that is, frankly, extremely tragic and appears unedifying.  After a marriage of no less than 43 years, a wife has felt constrained to petition for divorce from her husband.  They have four fully adult children, namely one son and three daughters.  There is a decree nisi but not yet a decree absolute.  It is clearly a fundamental part of the background to recent events that the husband has been both physically and mentally or psychiatrically unwell.  Therein lies a significant element of the tragedy.  The situation currently is that, having been compulsory detained, he is now living again in the matrimonial home.  The wife is having to live with one of their daughters. 

2. There appears to be an intense conflict within the family in relation to certain dispositions which were, or may have been, made some years ago by the husband, and which may appear to have favoured the son in preference to the daughters and to be to the disadvantage of the wife.  The result is that earlier this year the son intervened in these proceedings.   An order was made by District Judge Hess as long ago as 5 March 2013 which identified a so-called preliminary issue, which was listed for hearing with a time estimate of four days, on a date to be fixed, but which has long been fixed for Monday 25 November 2013.  Shortly before that, an order had been made, on 5 February 2013, by District Judge Malik, appointing a man called Stephen Woolfe as litigation friend of the husband in these divorce and financial proceedings generally. 

3. At the time of that order of 5 February 2013, the wife herself and her advisers were concerned about the mental wellbeing of her husband and indeed, as I understand it, it was she and they who very responsibly drew the issue of capacity to the attention of the court.  Her proposal and suggestion at that time was that the Official Solicitor should be invited to act as litigation friend.  However, Mr. Woolfe put himself forward as litigation friend and argued at the hearing (by counsel) that he should be so appointed.  As I understand it, counsel on behalf of the wife resisted the appointment of Mr. Woolfe, but District Judge Malik found against her and Mr. Woolfe was duly appointed.  That, as I say, was on 5th February 2013.  It was of course open to the wife to give notice of appeal within 21 days of that decision and order, but she did not do so. 

4. The essence of the complaint and objection by and on behalf of the wife is that Mr. Woolfe is a solicitor who is conflicted, having previously acted as a solicitor for members of the family generally, including herself.  The position of the wife may perhaps be summarised for the purposes of this judgment by saying that she and her advisers consider that Mr Woolfe is far too close to some of the events which now fall for scrutiny to have the required objectivity and detachment to act as litigation friend for the husband. 

5. During March, and by the order of 5 March 2013, the son, Christopher, was joined as an intervener to these proceedings, and the preliminary issue was identified as I have described.  

6. The scale of the issue is very large.  This family (or formerly the husband) had, and has, an engineering business and a property holding having a value of somewhere of the order of £50 million.  The wife does currently have a 5% share in that overall enterprise; but the preliminary issue, as identified, is "whether the respondent's [viz the husband's] and/or the applicant's [viz the wife's] shareholdings in [the entire enterprise] are held on trust for the intervener".  So upon the resolution of that issue hangs potentially as much as £50 million or, at any rate, £25 million, for it may be accepted that, on any view, Christopher does own just over half the enterprise. 

7. Christopher promptly instructed the same firm of solicitors in which Mr. Woolfe is a partner to act as his solicitors in these proceedings.  As I understand it, different partners deal with the case on behalf of the husband (by the litigation friend, Mr. Woolfe) and Christopher respectively.  It is not difficult to appreciate the unease that the wife and her advisers must have about those arrangements, for the appearance is that the position of both the husband and the intervener is being entirely handled within the walls of a single firm of solicitors, and she has understandable concern as to whether in some way she might be disadvantaged as a result, and/or the proper interests of her husband, to whom she is still married, may be disadvantaged. 

8. I am told by Mr. Philip Cayford QC, who appears today on behalf of the wife, that there then followed a very considerable amount of correspondence between the solicitors with regard to the role and involvement of the one firm.  Be that as it may, it was only by an application dated 23 August 2013 that this issue of concern was first raised with the court.  It was given an estimate of four hours, and listed for hearing  today, 1 November 2013. 

9. In preparation for this hearing, a bundle was produced yesterday, which extends to many hundreds of pages.  I was faced this morning with three skeleton arguments totaling around 50 quite dense pages.  There was a suggestion that I certainly needed to read at least 40 pages of the statements, making a total of around 100 pages of pre-reading.  In addition, a bundle of authorities was produced.  Almost at the outset of today I made plain, and now record, that I simply was not willing to give substantive consideration today to that application dated 23 August 2013.  

10. There are essentially three reasons for that decision.  First, the estimate of four hours, or even one day, for considering this matter was, frankly, too short.  There are some hours of reading involved.  The issue is very strongly contested.  There is consideration of a certain amount of law, which can scarcely be described as ABC law.  Further, the issues that have been raised clearly verge into issues with regard to the appropriateness of decisions taken by, and the conduct of, members of the firm of solicitors.  In short, the issues are potentially very serious ones.  So that is the first point - there was nowhere near enough time today substantively to deal with this.  

11. The second point and reason is that it was as long ago as 5 February 2013 that Mr. Woolfe was in fact appointed litigation friend by the decision and order of District Judge Malik.  The wife and her advisers had opposed that.  They disagreed with that then, but they did not at that time take any steps to appeal from the decision and order of District Judge Malik. 

12. The third point and reason is that the preliminary issue has now been fixed for many months for substantive hearing later this month, beginning on 25 November.  I have been told that there are currently altogether about 15 lever arch files in this case, although it is forecast that they will be slimmed down to two lever arch files for the purpose of the preliminary issue hearing.  Already the parties between them have spent £700,000 in costs of and incidental to this litigation, which has not yet even reached the point of the hearing of the preliminary issue. 

13. To my mind, it would be virtually impossible now to expect a new litigation friend to be identified and to be able properly to prepare and take on this case in the three weeks between now and the hearing of the preliminary issue.  I would, frankly, be astonished if the Official Solicitor, with all the pressures upon his office, had a willingness to accept, immerse himself into, and engage upon a case of this kind at that short notice; the more so as he would necessarily first have to satisfy himself that the husband does currently lack capacity.  Quite apart from the problem of identifying and finding a suitable litigation friend at such short notice, not one, but two firms of alternative solicitors would have to be found who had the willingness and resources to take on this case from a standing start, less than three weeks before this significant hearing. 

14. So I simply decline to deal with the application today for the three reasons:  first, that the estimate for today was too short; second, that the issue has been raised far too late after the essential decision and order of District Judge Malik; and third, that there is far too short a time before this significant preliminary issue hearing.  I wish to make crystal clear, as is apparent to all in court today, that I have not given any substantive consideration to the merits of the application.  I am not dismissing it.   I am simply making no order upon it today.  I do not preclude that it may yet be raised again on some future occasion. 

15. During the course of today, a great deal of time has been spent upon enlarging the estimate for the projected hearing later in November, and in giving various directions in preparation for it.  I hope, at least, that that is now on track to be an effective hearing with sufficient time allowed. 

16. There is, however, one aspect that has greatly concerned me today, which is quite separate and distinct from the issues raised by the application of 23 August 2013.  That application was directed to the identity of the litigation friend and to legal representation.  The issue that has greatly concerned me today is whether or not the husband does still currently lack capacity.  He was seen by a psychiatrist, Dr. Sharma, on 2 August 2013, and the situation at that time appears to have been one of some improvement.  On the critical issue of capacity to conduct these proceedings and make decisions about them, I have to say that I regard the report of Dr Sharma as relatively equivocal.  That, however, speaks of 2 August 2013.  Three more months have now elapsed and I propose, therefore, to give directions, in terms that have already been discussed and announced, for Dr. Sharma to see the husband again and prepare a further report.  I have absolutely no idea what may emerge from that process, but patently the whole question of the capacity of the husband may have to be revisited by the trial judge at the outset of the hearing later this month. 

17. I am not willing, at ten to six on a Friday evening, to accede to the request of Mr. Christopher Wagstaffe QC, on behalf of the intervener, that I say anything generally with regard to the timing of an FDR in situations such as this.  But I do record my personal regret that in this particular case an FDR was not fixed before, rather than after, the trial of the preliminary issue.  I am of course well aware of the argument and consideration that is invariably raised, that an FDR cannot be effective until it is known what the assets are.  That may be a particularly cogent argument where there is a third party claim by somebody who is not himself part of the close family at all.  In this particular case, the third party claim is made by a man who is the son of this husband and this wife.  This entire litigation essentially concerns just three people:  a mother, a father and their son, although I appreciate that it may impact also on the three daughters of the family.  I would have thought that in this case this was a particularly opportune moment to have assembled all concerned (not necessarily the husband himself if he was physically or mentally unfit to attend) in a forum such as an FDR and to have a sustained attempt to see if a resolution to this awful conflict could not be found at a stage when there may be high litigation risk for all concerned.  However, the preliminary issue is now fixed for only three weeks from now, and patently there is now no opportunity at all to interpose a court FDR, for which a minimum of one day would have to be found.  But I have to say, as I leave this very long day, that I do so with a feeling of the utmost despair that this family could have spent three quarters of a million pounds just to get to this stage.  They are likely to spend some hundreds of thousands of pounds in preparation for, and at the hearing of, the preliminary issue, and even that is only the preliminary issue.  This family appears to be tearing itself apart, and it fills the sympathetic but detached observer such as myself with nothing but despair.